Citation Nr: 0105362 Decision Date: 02/22/01 Archive Date: 03/02/01 DOCKET NO. 95-34 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a nervous condition, to include PTSD, due to sexual trauma. 2. Entitlement to service connection for cervical dysplasia and cervicitis due to sexual trauma. 3. Entitlement to service connection for tubal collapse due to sexual trauma. 4. Entitlement to service connection for salpingitis due to sexual trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the veteran's claims for service connection for the disabilities listed above. The veteran filed a timely appeal to these adverse determinations. REMAND The veteran claims entitlement to service connection for several disabilities, including a nervous condition, to include PTSD, cervical dysplasia and cervicitis, tubal collapse, and salpingitis, which she asserts resulted from being raped on three occasions in service. In response to an April 1994 letter from the RO requesting more detailed information regarding this sexual trauma, the veteran submitted a lengthy statement, received by VA in August 1994, in which she detailed two of these claimed incidents. Specifically, the veteran asserted that she was raped in November 1974 at Ft. McClellan in Alabama by a sergeant who was also a church deacon. She also maintains that she was sodomized and raped in August 1976 at Ft. Meade in Maryland by a soldier in military housing off base. In reviewing the veteran's PTSD claim, the Board notes that since the veteran's principal claimed stressor, the inservice sexual trauma, is not a combat-related stressor, the record must contain evidence which corroborates the veteran's claim as to the occurrence of this claimed stressor. In this regard, the Board observes that, during the pendency of the veteran's appeal, the Court issued a decision in Patton v. West, in which it noted that in the particular case of claims of PTSD due to a personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in- service trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty veterans face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter Manual M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim, and thus state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). In addition, the Court in Patton noted that in two places the MANUAL M21-1, Part III, 5.14(c)(3) and (9), appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence" and holds that any such requirement, however, would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). Therefore the evidence need only be in relative equipoise to prevail on the question of the existence of the stressor. The Court has held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations, and are binding on VA. Cohen; YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. In addition, the Board notes that while these changes to MANUAL M21-1 do not directly affect the adjudication of the veteran's other claims on appeal, they could potentially affect all of them, since her claims for cervical dysplasia and cervicitis, tubal collapse, and salpingitis all stem from the same alleged sexual trauma which serves as the basis for her claim for service connection for PTSD. Finally, the Board also notes that on November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 (2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7, 5126) (the "Act"), which substantially modified the circumstances under which VA's duty to assist claimants applies, and how that duty is to be discharged. The new law affects claims pending on or filed after the date of enactment (as well as certain claims which were finally denied during the period from July 14, 1999 to November 9, 2000). Changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. Therefore, in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to the issues on appeal in this case is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should provide the veteran with a personal assault letter and questionnaire to be filled out and returned, in accordance with M21-1, Part III, § 5.14(c), in order to obtain as much information as possible about the personal assault incidents in service, to include a detailed description of the pertinent incidents, with all pertinent dates and locations, as well as the complete names and unit designations of the assailants and others who were also assaulted or have knowledge of the incident. The RO should afford the veteran the opportunity to submit any additional evidence in support of her claim for service connection for PTSD, to include statements from relatives. She should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors she alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that she must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, including military police records, if the veteran has provided sufficiently detailed information to make such request feasible. 2. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor which might indicate the occurrence of an inservice stressor, or if otherwise deemed necessary, the RO should obtain interpretation of such evidence by a clinician as provided in M21-1, Part III, 5.14(c)(9). 3. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 4. Thereafter, if any claimed inservice stressor is corroborated by the evidence or if otherwise deemed warranted, the veteran should be afforded a VA psychiatric examination. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. 5. The examiner must determine whether the veteran has PTSD and, if so, whether the inservice stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 6. The veteran's claims should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). Any additional action required to comply with the notice and development requirements of the Veterans Claims Assistance Act of 2000 should also be undertaken. If any of the veteran's claims remains denied, she and her representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21- 1, Part III, 5.14(c). The applicable response time should be allowed. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until she is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).